Chiao Fang Ku v. Attorney Gen. U.S.

912 F.3d 133

CHIAO FANG KU, aka Chiao Fang Ronan, aka Anna Ronan, Petitioner

v.ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent

No. 17-3001

United States Court of Appeals, Third Circuit.

Argued September 12, 2018

Opinion Filed: January 3, 2019

Thomas M. Griffin [Argued], Surin & Griffin, 718 Arch Street, Suite 701N, Philadelphia, PA 19106, Counsel for Petitioner

Chad A. Readler, Acting Assistant Attorney General, Nancy E. Friedman, Senior Litigation Counsel, Justin R. Markel, Senior Litigation Counsel, Gregory A. Pennington, Jr. [Argued], United States Department of Justice, Office of Immigration Litigation, Civil Division, P.O. Box 878, Ben Franklin Station, Washington, DC 20044, Counsel for Respondent

Before: JORDAN, VANASKIE^* , and NYGAARD, Circuit Judges

OPINION

VANASKIE, Circuit Judge.

Seeking to remain in this country, Chiao Fang Ku petitions for review of a final order of removal issued by the Board of Immigration Appeals ("BIA" or "Board"). The Board determined that Ku had committed an aggravated felony under 8 U.S.C. § 1101(a)(43)(M)(i) because her prior conviction for wire fraud constituted an offense involving fraud or deceit in which the loss to the victims exceeded $10,000. The Board also found that Ku’s wire fraud conviction constituted a "crime involving moral turpitude" under 8 U.S.C. § 1182(a)(2)(A)(i)(I) such that, without a waiver, she is ineligible for an adjustment of status. Although the Immigration Judge ("IJ") granted Ku a waiver of inadmissibility under 8 U.S.C. § 1182(h)(1)(B) based on the extreme hardship that her deportation would cause her U.S. Citizen children, the Board reversed that decision. Ku challenges each of the Board’s decisions.

In Nijhawan v. Holder , 557 U.S. 29, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009), the Court held that determination of whether a fraud offense involved loss to the victims of $10,000 or more requires a circumstance-specific approach, allowing the immigration court to review both the charging document and sentencing-related materials to determine the loss amount attributable to the offense. On the facts of this case, we find that the undisputed loss to the victims of well over $10,000 was sufficiently tethered to Ku’s wire fraud conviction such that the conviction qualifies as an aggravated felony. Furthermore, we find no error in the Board’s determination that wire fraud constitutes a crime of moral turpitude. Lastly, regarding the waiver of admissibility, we do not have jurisdiction to review the discretionary denial of a waiver under § 212(h) of the INA. Accordingly, we will deny in part and dismiss in part Ku’s petition for review.

I.

Ku is a native and citizen of Taiwan. She was admitted to the United States in 1997 and gained status as a lawful permanent resident in 2002. In 2014, Ku was charged with a single count of wire fraud, in violation of 18 U.S.C. § 1343. Ku waived her right to an indictment and was charged by information only. The Information alleged that Ku was tasked with managing the finances of her in-laws, E.R. and M.R, and that she was provided access to her in-laws’ bank accounts in connection with this role. The Information further alleged that, between May 2008 and July 2013, Ku defrauded her in-laws by using her access to their accounts to take money from them for her personal use. In particular, it alleged that Ku: (1) transferred funds from her in-laws’ accounts to her own accounts; (2) withdrew funds from her in-laws’ accounts as cash; (3) made payments from her in-laws’ accounts to pay off her personal credit cards; (4) wrote and cashed checks payable to herself by forging her mother-in-law’s signature; and (5) fraudulently applied for and obtained credit cards in her mother-in-law’s name and used them for her own purposes. The Information alleged that, in total, Ku stole more than $950,000 from her in-laws.

These allegations were incorporated by reference into the sole count of the Information, which alleged that, on or about November 7, 2011, Ku,

having devised and intending to devise a scheme and artifice to defraud and to obtain money and property by means of materially false and fraudulent pretenses, representations, and promises, did cause writings, signs, signals, pictures, and sounds to be transmitted by means of wire communications in interstate commerce for the purpose of executing such scheme and artifice, to wit: executing an online payment from M.R.’s Sovereign Bank account, ending in 8497, to the defendant’s Chase credit card account, ending in 6567, in the amount of $2,290.53.

(App. 590). The Information further contained forfeiture allegations, which directed that, upon conviction of the sole count of the Information, Ku "forfeit to the United States ... any property, real or personal, that constitutes, or is derived from, proceeds traceable to the commission of the offense, including but not limited to at least $950,000 in United States currency." (App. 591).

Ku pleaded guilty, pursuant to a plea agreement,¹ to the single count of the Information. In her sentencing memorandum, Ku, through counsel, acknowledged that she was "now subject to automatic deportation as a result of her conviction in this case." (App. 740). Ku was ultimately sentenced to a term of 18 months’ imprisonment, followed by one year of supervised release. The judgment includes a total loss determination of $954,515.71 and orders restitution in that amount. (App. 582).

After Ku completed her sentence, she was served with a Notice to Appear and placed in removal proceedings. The Notice to Appear charged Ku with being removable under § 237(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA" or the "Act"), 8 U.S.C. § 1227(a)(2)(A)(iii), as an individual convicted of an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(M)(i). The Immigration Judge concluded that Ku was removable as charged because the record of conviction substantiated a finding that the wire fraud involved a loss of more than $10,000.

In order to avoid deportation, Ku sought to re-adjust her status based on her U.S. Citizen husband.² The Immigration Judge granted Ku’s application for a waiver of inadmissibility under § 212(h)(1)(B) of the Act, 8 U.S.C. § 1182(h)(1)(B), based on the extreme hardship that her deportation would cause her U.S. Citizen children, and granted Ku’s adjustment of status pursuant to § 245(a) of the INA, 8 U.S.C. § 1255(a).

On appeal, the Board affirmed that the Government demonstrated by clear and convincing evidence that Ku was removable as an aggravated felon as defined at § 1101(a)(43)(M)(i) in that her offense involved fraud or deceit in which the loss to the victims exceeded $10,000. In doing so, the Board noted that the Information alleged that Ku stole more than $950,000 in funds belonging to her in-laws, and that this allegation was incorporated by reference into the count to which Ku pleaded guilty. It also observed that the Information also contained a forfeiture allegation stating that, upon conviction, Ku would forfeit over $950,000 in currency. Finally, the Board considered relevant that the Judgment of Conviction found a total loss of over $950,000 and ordered restitution in that amount.

The Board further concluded that Ku’s conviction was for a crime involving moral turpitude, making her inadmissible under § 212(a)(2)(A)(i)(I) of the INA, 8 U.S.C. § 1182(a)(2)(A)(i)(I), such that she required a § 212(h) waiver in order to adjust her status. See 8 U.S.C. § 1255(a) (providing for adjustment of status of certain aliens to that of an alien lawfully admitted for permanent residence); see also 8 U.S.C. § 1182(h)(1)(B) (providing for waiver of inadmissibility at the discretion of the Attorney General). Although it acknowledged the hardship posed to her family, the Board ultimately found that, given the severity of her crime, Ku did not merit a § 212(h) waiver. It accordingly vacated the decision of the IJ and denied Ku’s applications for a § 212(h) waiver and for adjustment of status. Ku timely filed a petition for review.

II.

Although we have jurisdiction to review final orders of removal under 8 U.S.C. § 1252(a),³ "no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed [an aggravated felony]." 8 U.S.C. § 1252(a)(2)(C). "We do, however, have jurisdiction to examine ‘constitutional claims or questions of law.’ " Fan Wang v. Att’y Gen. , 898 F.3d 341, 343 (3d Cir. 2018) (quoting Catwell v. Att’y Gen. , 623 F.3d 199, 205 (3d Cir. 2010) ; 8 U.S.C. § 1252(a)(2)(D) ). Therefore, we have authority to take up the issue, applying plenary review, of whether Ku’s conviction qualifies as an aggravated felony because it is "a purely legal question, and one that governs our own jurisdiction." Id. (quoting Valansi v. Ashcroft , 278 F.3d 203, 207 (3d Cir. 2002) ). We also review de novo the legal question of what elements of a federal criminal statute implicate moral turpitude, while affording Chevron deference to the Board’s definition of "moral turpitude." Knapik v. Ashcroft , 384 F.3d 84, 88 (3d Cir. 2004).

III.

On appeal, Ku challenges all three aspects of the BIA’s order. First, she contends that the BIA incorrectly determined that her wire-fraud conviction involved a loss of more than $10,000 by relying on evidence that was not sufficiently tethered to the sole count of conviction.⁴ Second, Ku argues that the Board erred in finding that her wire-fraud conviction was for a crime involving moral turpitude because the statute of conviction does not require a showing of intent. Third, Ku asserts that the BIA applied the incorrect legal standard in reversing the IJ’s grant of a discretionary waiver of inadmissibility. We reject all three of Ku’s challenges and therefore deny the petition for review.

A.

Section 237(a)(2)(A)(iii) of the INA, as amended, provides that "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable." 8 U.S.C. § 1227(a)(2)(...